San Jose starts talks on police misconduct under Measure G 

Now that voters overwhelmingly passed Measure G to expand the authority of the independent police auditor, city leaders are charging forward with plans to take police misconduct investigations out of the hands of the San Jose Police Department and ensure officers are fired or disciplined following abuses of power.

The city’s Rules and Open Government Committee voted unanimously Nov. 18 to revisit a contract with the San Jose Police Officers Association that allows an arbitrator to reverse the city’s decision to fire or discipline an officer.

“This is the very critical work that we embark upon today, and if we succeed, San Jose will again become a model for police accountability and transparency,” Mayor Sam Liccardo said.

The City Council has prioritized police reform since the death of George Floyd sparked a nationwide conversation about excessive officer use of force. Lawmakers voted unanimously to place Measure G on the November ballot and recently set up guidelines for releasing officer body worn camera footage to the public.

But Liccardo said the city wants to go further by overhauling the San Jose Police Officers’ Association contract. The current union agreement has allowed “too many bad cops” to return to the departments that fired them, according to the mayor.

In 2016, the San Jose police chief fired an officer who bullied Black Lives Matter advocates on Twitter. An arbitrator ultimately reinstated the officer, against the police chief’s wishes and the city was unable to obtain records on why the arbitrator let the officer come back to work.

Paul Kelly, president of SJPOA, said arbitration has been used only eight times in the past decade and the city prevailed in five of those cases.

Eliminating the arbitrator’s role is the “wrong approach,” according to Kelly, because it detracts from more important work that needs to be done to create change within the department. SJPOA’s goals for reimagining policing include increasing de-escalation training, dispatching mental health experts to manage crisis calls and rethinking which non-emergency calls don’t require a police response.

“Almost every idea from politicians about improving policing in San Jose is focused on what happens after a controversial incident has occurred and this back-end approach will do nothing to prevent or diminish the number of these incidents from happening,” Kelly said. “We are open to discussing other reasonable ideas that accomplish some tangible improvements to policing and not just checking a box.”

The University of Pennsylvania Law Review argued that the arbitrator model — found in other major cities such as Oakland, San Antonio, Denver, Chicago and Houston — hinders police reform and opens the door for future misconduct by officers who aren’t appropriately disciplined for inappropriate behavior.

“Rules around the arbitration process have inherent defects that can undermine much of the good work that SJPD has done to improve officer conduct and accountability,” Liccardo and Councilmember Magdalena Carrasco wrote in a Nov. 18 memo. “If we cannot find a better process than arbitration, we must negotiate a means to make every arbitrator’s decision completely transparent and accountable.”

Liccardo said the city will need to have a larger conversation with SJPOA to see how the arbitration process can be reformed and hoped the two could come to an agreement.

Kelly said SJPOA also opposes eliminating the Internal Affairs Unit and handing over officer conduct investigations to the IPA.

“The IPA has never conducted an Internal Affairs investigation and has no staff or infrastructure or legal background or authority to conduct these complex investigations,” Kelly said. “The only reason left for doing this is political and the last thing San Jose needs is political meddling in any investigation.”

Harriet Wolf, District 4 resident and member of People Acting in Community Together, supported expanding the powers of the IPA and reforming the arbitration process, alongside a handful of other residents at the meeting.

“These actions will signal that there’s no room in our police department for any officers who cannot or will not uphold the honor and dignity of the office and show all community members respect and decency.” Wolf said.

The proposal aligns with Liccardo’s 9-point police reform plan which promises to implement independent investigations, ban rubber bullets, recruit more youth of color to the police force and make hiring, firing and discipline processes more transparent.

A work plan proposal to give the IPA expanded power to investigate police misconduct will be discussed by March 1. It’s unclear when the negotiations with SJPOA will come back to the City Council.

Contact Carly Wipf at [email protected] or follow @CarlyChristineW on Twitter.